The US Supreme Court confirmed that 'sexually dangerous' offenders may be detained past their prison terms, Monday.

Molly Riley/Reuters

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Congress did not exceed its constitutional authority when it passed a 2006 law permitting the civil detention of certain violent sexual offenders after they have served their full prison terms, the Supreme Court ruled Monday.

In a 7 to 2 ruling, the high court upheld Section 4248 of the Adam Walsh Child Protection and Safety Act. The law establishes a civil commitment procedure to keep behind bars any federal inmate deemed by the government to be sexually dangerous.

Government lawyers argued that the law is necessary to prevent federal prisoners who had engaged in sexually violent activity or child molestation from harming new victims by being released from prison.

Under the law, federal prosecutors are authorized to seek the civil commitment of such prisoners by proving to a federal judge that the individual suffers from a mental illness or abnormality and would have “serious difficulty in refraining from sexually violent conduct or child molestation if released.”

The law requires federal officials to notify home-state authorities of a prisoner’s possible release from federal detention and to turn the prisoner over to state officials if they agree to hold him. But in the absence of any transfer, federal officials are authorized to continuing holding the individual under the federal civil commitment statute.

Of 15,000 sex offenders in federal custody, 105 have so far been certified as “sexually dangerous.” Five of them filed a lawsuit charging that the federal statute exceeded Congress’s limited powers under the Constitution and intruded into general police powers assigned by the Founding Fathers to state governments.

A federal judge and federal appeals court panel agreed, ruling that Congress had intruded into an area reserved to state governments. They struck the law down.

On Monday, the high court reversed that decision.

Writing for the seven-member majority, Justice Stephen Breyer said Congress’s authority to enact the measure stemmed from the Constitution’s necessary and proper clause.

“The statute is a ‘necessary and proper’ means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others,” Justice Breyer wrote.

Breyer cautioned that his decision should not be read as granting to Congress a general police power, “which the Founders denied the National Government and reposed in the States.”

Instead, Breyer compared the statute to federal efforts to prevent the spread of disease from released prisoners to the general population.

“If a federal prisoner is infected with a communicable disease that threatens others, surely it would be ‘necessary and proper’ for the federal government to take action [and] refuse to release that individual among the general public where he might infect others,” Breyer wrote.

“And if confinement of an individual is a ‘necessary and proper’ thing to do,” he said, “then how could it not be similarly ‘necessary and proper’ to confine an individual whose mental illness threatens others to the same degree?”

In a dissent, Justice Clarence Thomas said Breyer’s opinion “comes perilously close to transforming the necessary and proper clause into a basis for the national police power that we always have rejected.”

The necessary and proper clause authorizes Congress to enact only those laws that facilitate federal powers enumerated in the Constitution, he said. But Section 4248 is unrelated to any enumerated powers, Justice Thomas said in his dissent, which was joined by Justice Antonin Scalia.

“Protecting society from violent sexual offenders is certainly an important end,” Thomas wrote. “But the Constitution does not vest in Congress the authority to protect society from every bad act that might befall it.”

Under the framework of the Constitution, those powers reside with the state governments, Thomas said.

The lopsided 7 to 2 result in the case suggests that federalism is no longer a high priority within the high court’s conservative wing. Under former Chief Justice William Rehnquist the court’s conservatives aggressively enforced the federal-state balance of power, ruling frequently to uphold state sovereign power in the face of what conservative justices viewed as federal encroachment.

Although the federal inmates lost their case on Monday, the litigation may not be over. The court acknowledged that it was not ruling on whether the civil commitment law complied with constitutional requirements of equal protection and due process. Breyer said the inmates were free to now pursue those constitutional challenges in the lower courts.